Maddeningly, to Ginsburg, she came within a hairsbreadth of presenting the issue in the perfect case for female self-determination, deliciously, a case of forced abortion. In 1970, the air force sent Captain Susan Struck home from Vietnam, on the grounds that she was pregnant. Take a free government abortion, the air force offered, or we’ll discharge you. Instead, Struck sued. Tossing her out of her government job because she had a baby instead of the proffered abortion violated the Constitution, she claimed. While litigating, Struck, a Catholic, had the baby and gave it up for adoption. In 1971, the Supreme Court agreed to hear her plea. Boy, did Ginsburg want to argue that one.
It is unimaginable that in 1972 the Supreme Court would have allowed the government to force an abortion on a woman as a condition of her keeping her job and military career. People have largely forgotten, but all the reproductive rights cases including Roe go back to a 1947 decision forbidding the government to sterilize criminals. Despite the abortion opponents’ propaganda, the seminal reproductive rights decisions did not involve bead-wearing hippies wanting to have sex without consequences in the mud of Woodstock. It was the right to have a child that the Court protected first, in a time perilously close to the Nazi era of racial sterilizations. From that principle sprang the decisions that the government could not force people to reproduce any more than it could forbid them from doing so.
Struck had everything. In addition to proposing the forced abortion, the air force then punished Susan Struck for having had a baby at all, even though she was no longer responsible for it, treating pregnancy, which happens only to women, differently from any other disability. Men with drug and alcohol disabilities were treated better than women who got pregnant. And the government said it was for their own good! So the Struck case could have given birth to a sound, equality-based abortion decision and it also could have forestalled the risible later cases where the Court denied that pregnancy discrimination was a woman’s issue.
But Ginsburg’s nemesis from Harvard, the former “what are you women doing here” dean, Erwin Griswold, got in the way. By 1972, Griswold was serving as the chief government lawyer, the solicitor general of the United States. He thought the government was about to lose the Struck case, in the highest court in the land, weakening its ability to discriminate against pregnant women in other contexts. So he pressured the air force to repeal its policy and reinstate Captain Struck. Then he told the Supreme Court the case was moot; there was no dispute left. The Court dismissed Struck’s case.
Within a few years the justices decided two cases in ways that were less favorable to women than Ginsburg hoped to have achieved. They decided Roe v. Wade, the abortion case, on sweeping privacy grounds instead of as an extension of the principle of women’s equality. Resting on the fragile concept of “privacy,” the abortion decision was politically vulnerable to claims that the “private” decision was just an arbitrary “private” choice, rather than a path to women’s equality under the law. In two other cases the year after Roe v. Wade, the Court allowed the government to exclude pregnancy from disability benefits to save the government money.
Other than abortion rights, for the rest of the decade and for years after Ginsburg left to go on the federal bench in 1981, the ACLU Women’s Rights Project was the go-to place for women’s legal rights. The 1970s—the Neier years—may have been the high-water mark of the ACLU’s social power. In the late stage of the Vietnam War, the Pentagon Papers and the Nixon impeachment catapulted issues of rights onto the front burner and kept them there. And Neier was by all accounts a gonzo fund-raiser. The ACLU got money from Ford, from Carnegie, and from Neier’s personal piggy bank, the Playboy Foundation. The WRP had four full-time lawyers, social activists, staff, and a country full of volunteer cooperating attorneys.
By 1980 the ACLU women’s initiative had gotten over a million dollars from the Ford Foundation alone. Susan Berresford, a program officer at Ford, was at the forefront of moving the foundation into its role as a funder of the feminist revolution. The ACLU brought its new “star” Ginsburg to meet the folks at Ford, and Berresford took an instant liking to her, because “she had a calm, clear, powerful argument … and she was compelling and smart and calm in a way that added to her certainty, she was so confident about it.” Berresford’s boss at Ford, Michael Svirdoff, was a wisecracking guy with a limited tolerance for what he called “sensitivity meetings.” The clear, calm Ginsburg was perfect for him.
Ginsburg’s imperturbability was to be sorely tested when, in 1973, the Ford Foundation funded a meeting that Ginsburg convened along with Sylvia Roberts, the head lawyer from the National Organization for Women. Their agenda was to bring all the lawyers doing women’s rights litigation around the country to a hotel conference room and try to set some priorities and divide the work. Ginsburg was always very concerned that the cases reach the Court in the order most likely to generate a growing structure of favorable decisions.
The conference is a textbook example of Ginsburg’s finesse in managing the women’s legal revolution. Everyone should agree, Ginsburg and Roberts decided in the early days of conference planning, that litigation would be their method and they wouldn’t spend all their time at the conference reinventing the wheel. In her characteristically tidy way, Ginsburg suggested how the participants should think about the issue. Should they set priorities on issues? Should they present issues in a particular order? How should they publicize, share, support their efforts? Buried right in the middle of the list was the thing she actually cared about: “Identification of cases ripe for Supreme Court adjudication and of cases in which Supreme Court resolution should not (yet) be sought.”
But the left is never tidy. When the answers to Ginsburg’s questions came back, one of the participants, Mary Eastwood, suggested that the first night be devoted to the “legal philosophy of feminism” with a special emphasis on “factionalism in the women’s rights movement.” Ginsburg, by contrast, had hoped that the time would be spent on “what they wish to come from our meeting.” But when the feminist lawyers arrived at the basement conference room of the Sheraton Russell Hotel, on the first night of the conference, April 26, they received a case study to discuss: “Daisy, Sheryl and Joan,” who “live in a lovely big house in the country with a dog and three cats” and wished to adopt some children, but “the county adoption agency turned them down because of a rumor (true) that Daisy and Sheryl were a Lesbian couple, and in any event, ‘three adults is not a family but a commune.’” Is lesbianism a feminist issue, Eastwood asked. And the movement lawyers were off to the races.
“Everything that concerns women is important,” Ginsburg’s co-moderator Sylvia Roberts suggested. “Lesbianism allows greater freedom for alternative life-styles and thus helps women and men break out of sex roles,” the newly minted law professor Barbara Babcock added. “In New York,” the old movement hand Janice Goodman volunteered, “many women say lesbianism is the forefront of the movement.”
Ginsburg was a liberal, but she did not espouse the ’60s mantra that no one is free until everyone is free. “Not all feminist issues should be litigated now,” she said, “because some are losers, given the current political climate, and could set back our efforts to develop favorable law. For example, it’s the wrong time to challenge veterans’ preferences.” As to litigating lesbianism, she innocently reminded the gathering, “A student note in a recent Yale Law Journal deals with the impact of the ERA on same-sex marriage. The note takes the position that a ban on them [same-sex marriages] would be unconstitutional under ERA. That note is now being used by opponents of ERA to scare off supporters.” (The 1973 note writer was prescient; in 1993 the first court to legitimate same-sex marriage, in Hawaii, made its decision based on the Equal Rights Amendment to the state constitution.) Same-sex marriage did not concern Ginsburg at that moment. Until the day it stopped twitching, passing the Equal Rights Amendment was always her priority. Being Ginsburg, however, she put her argument in the mouths of others, in this case the Y
ale law student.
Ginsburg’s soon-to-be project director Kathleen Peratis disagreed with her future boss. “[I] reject the idea of not doing something because it would get us a bad name in society,” she contended; “there’s a value in the lunatic fringe.”
The ACLU board member Pauli Murray, who had been through the glory days of the NAACP Legal Defense Fund, reminded the group that picking and choosing cases was central to Thurgood Marshall’s effectiveness. Why, she told the group, Marshall even turned her down when she was rejected for college in 1938 because he thought her case would not be a good-enough precedent. “One bad decision of the Supreme Court has a terrible impact,” she reiterated. The participants were having none of it. Why should lawyers be deciding what issues get priority, one lawyer asked. We don’t control what cases we get anyway, another asserted. Faction was the name of the game in ’70s social movements.
As the ’70s feminists went about their anarchic ritual, someone suggested that they simply turn to the next proposal on the agenda, a well-funded national center patterned on the model of the NAACP. Ginsburg was already a year into running the center, midwifed by Pauli Murray, and setting most of the priorities for legal feminism. With Ford Foundation support, her students at Columbia were gathering litigation through the ACLU in an effort to realize her equality agenda. Yet she said almost nothing about her role, confining her remarks throughout the conference to bland inquiries about timing and reporting on factual matters such as recent decisions.
Since Ginsburg was not leading a conventional social movement, she did not need to have many such meetings to sustain the momentum and keep the troops in line. Her razor-sharp professional skills and self-possession had already earned her a powerful position in the feminist legal movement. She just had to avoid giving offense.
“If someone else had been in that position,” the ACLU’s Neier believes, “I doubt they would be able to secure that degree of cooperation from other litigators in the field… . [S]he tended to inspire collaboration and respect rather than competition. She was not a person who was vain in any way. She did not try to capture the limelight. This was a self-effacing person who was on the one hand very disciplined in her thinking and on the other hand very kind to the people she worked with.” “She has this soft little tiny voice,” the NPR Court expert Nina Totenberg notes, “and she can say really devastating things in that quiet voice.”
Her newfound status in the power elite did not silence the quiet voice. No sooner had she arrived at Columbia and the ACLU than she was urging her colleagues to stop their sexist antics. Right out of the box she wrote to the president of Columbia, forwarding him the wonderful Rutgers affirmative action plan for getting more women on the faculty. In classic Ginsburg fashion, she starts the letter by reminding President McGill that they had already met at a parents’ night at the Dalton School. Just us natural elites here, President McGill. She wrote to the New York County Bar Association objecting to the use of the word “brethren” in light of the large participation by women in bar functions. She fussed privately and publicly about the professors and activists holding professional meetings at all-male clubs, as the Century Club was in the ’70s. She comes down hard on the ACLU. Why didn’t they pay more attention to my huge Supreme Court victories in their annual reports? she asks. The American Bar Association didn’t give the progressive section on rights and responsibilities a big-enough room at its meeting. “Ruth got away with a lot,” Janice Goodman recollects. “If I could figure out how she did it, I’d have done it myself.”
Part II
Chief Litigator for the Women’s Rights Project
Collection of the Supreme Court of the United States
Ruth Bader Ginsburg during the summer of 1977, when she was a scholar in residence at the Rockefeller Foundation in Bellagio, Italy.
4
Act One: Building Women’s Equality
Mozart had, by many accounts, five operatic masterpieces. Jane Austen’s reputation rests on five novels. As the chief litigator for the Women’s Rights Project from 1971 to 1980, Ruth Bader Ginsburg argued in five great Supreme Court victories (and one loss). In five landmark cases over less than a decade, she largely transformed the constitutional status of women in America. Reed v. Reed, the 1971 women as administrators of estates case, might make it six, but she did not argue that one. She merely wrote the brief the Court adopted as its opinion.
DEBUT
On a cold Wednesday afternoon in January 1973, Ruth Bader Ginsburg rose to make her first argument in the United States Supreme Court. Although she was on for only ten minutes, she had not eaten lunch; in her anxiety she was afraid she would throw it up. The case, Frontiero v. Richardson, had come from the federal court in Alabama, where it was handled by the founders of the brand-new Southern Poverty Law Center, Morris Dees and Joseph Levin. Levin first offered to let Ginsburg argue at the Supreme Court. But, as the case progressed, Levin decided he was too attached to the matter—and his first opportunity to appear before the Court—to let it go. So Levin argued first, graciously ceding ten minutes to “Professor Ginsburg.”
Frontiero v. Richardson arose because Sharron Frontiero, an air force medic, challenged the military presumption that servicemen’s wives were dependent on their husbands for support, but servicewomen’s husbands were not. With a husband as a spouse, she had to prove that he needed her to survive in order to get the housing and medical benefits that married male servicemen got for their families as a matter of course. The dependent spouse rule was just one of myriad rules assuming female dependency and male independence that the women’s legal movement had turned up since its awakening.
GINSBURG THE SNEAKY LITIGATOR
But Frontiero was a great vehicle to use in asking for a more demanding standard of review of such discriminatory laws (to move sex discrimination into the category of those things, such as race discrimination or restraints on speech, that the Court had long ago said it would look at very hard). When the Court decided Reed v. Reed, Ruth’s first effort, it barely moved the standard of review for sex discrimination above the standard that applies to all legal distinctions: Was the law rational? After Reed v. Reed, a sex-discriminatory law must fairly and substantially advance the legislature’s purpose in passing it. Reed was huge because it was the first case where the Court refused to accept legal distinctions between the sexes as self-evident. The Reed standard is better than the low standard of mere rationality, but not close to Ginsburg’s aspiration to have the Court treat distinctions based on sex the same as race. In race cases, the government must prove that the discrimination is necessary to achieve a compelling governmental interest. Since the decision striking down segregated schools in 1954, almost no distinction has met that heavy burden.
Ginsburg was consciously following a well-established strategy. Even though aroused women all over the country were deluging the ACLU with complaints, a legal social change movement always wants to start changing big issues in the law like the standard for sex discrimination with cases that cause minimal disruption in the real world. The facts in the case revealed that making the few servicewomen prove that their husbands were dependent on them while letting servicemen claim benefits for their wives without proof served no purpose of substance for the air force. It just made the military’s administrative lives a little easier, by relying on an unattractive social presumption that women were always dependent on their spouses—and men were not.
Since there were so few women soldiers, the Court could help women out a lot by undercutting that destructive presumption at very little cost to the government. But once the Court changes the law enough to accommodate the small social change, it turns on the big engine of change in the legal precedent. The laws of the land were shot through with presumptions that women were dependent and men were not; indeed, shot through with all kinds of presumptions about women. Legal systems make presumptions all the time. It’s the presumptions about women that Ginsburg was after. Change the standard for revi
ewing presumptions about women and you change the entire body of law.
Ginsburg and her colleagues fought valiantly to control the Frontiero case. They did not want to see another inept provincial lawyer screw it up like the awful oral advocate from Idaho had done in Reed v. Reed. When Frontiero’s lawyers from the Southern Poverty Law Center asked the ACLU for help with their Supreme Court filings, General Counsel Mel Wulf believed they had an understanding to give it to Ruth to argue. She began framing the brief by asking for stricter scrutiny. Levin reneged on his offer to let her argue in October, three months before argument. Worse, as the briefing proceeded, it became clear that the Southern Poverty Law Center had decided to present the case as a modest application of the low standard of review Ginsburg had won in Reed v. Reed. The discrimination was simply arbitrary, they would argue, done for the air force’s convenience, which is just what the Court had forbidden in Reed.
The ACLUers were apoplectic. It was one thing to have a lawyer botch an oral argument as Sally Reed’s attorney had done. But Levin now proposed to change the legal strategy! As Ginsburg envisioned it, each case was supposed to build on the prior case, just like the NAACP had done, not simply repeat what they had already achieved. It was particularly maddening that the new unambitious Levin strategy came from a colleague, one Charles Abernathy, then a lowly 3L, albeit at Harvard, who thought he understood how to manage the Nixon Court. Apparently Feigen Fasteau imperfectly concealed her impatience with the upstart’s new strategy, because he wrote her a huffy letter about how his team was more “sophisticated” than she perceived. Her lack of respect made them, he threatened, disinclined to attend to any of her suggestions on anything.
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